On September 22, 2023, the amendment to the Polish Code of Civil Procedure entered into force that significantly reinforces the protection of employees who benefit from special protections against dissolution of employment. As a result, an employer can no longer dismiss a specially protected employee until a final judgment is passed, which can, due to lengthy court proceedings, take several years.
This solution stabilizes the employee’s situation during court proceedings. However, the regulation only takes into account the interests of the employee while completely disregarding the interests of the employer, in particular in the situation where the final judgment confirms that the dismissal of the protected employee was justified and lawful.
The amendment to the legislation is the result of an agreement between the government and the NSZZ Solidarnosc trade union. The agreement stipulates precisely the introduction of special protections for trade unionists in labor law cases. However, the final wording of the legislation passed by the parliament is significantly broader and extends the special protection to all employees covered by protection against dismissal.
In Poland, special protections against dismissal are available to many groups of employees. These include employees of pre-retirement age, employees performing military service, employees who have performed military service toward Polish independence, or war-disabled persons. In addition, employees are protected during a justified absence from work, in particular during annual leave or inability to work due to illness, employees during pregnancy and maternity leave as well as employees during paternity leave, parental leave, and partially during extended parental leave. A separate group of specially protected employees are those entitled to protection because of their public or social function. These include MPs, senators, councilors, social labor inspectors, as well as trade unionists and other members of employee representative bodies, for example, the workers’ council, European Works Council, etc. The purpose of guaranteeing employment stability to the latter group is to ensure the independent and undisturbed activity of a trade union or other employee representation.
After September 22, 2023, the court will be obliged to grant injunctive relief by ordering the continued employment of a worker under special protection by the employer until the final conclusion of the proceedings, if the eligible worker so requests. The injunctive relief will only be based on the substantiation of the claim. The court will be able to refuse such injunctive relief, but only if the employee’s claim is manifestly unfounded. In addition, the court, in its injunctive relief order, will be able to threaten the employer, if the protected employee so requests, to order pecuniary payment to the employee if the employer does not continue the employment under the court’s order.
The employer will only be able to request the revocation of a final injunctive relief order if it demonstrates that after the injunctive relief was ordered, the premises justifying the dissolution of employment due to the employee’s fault have arisen. Varying the injunctive relief order is not allowed. The injunctive relief order may be appealed before the court of second instance.
The new regulation is widely criticized because it means that the court, when granting injunctive relief, won’t be able to consider all the circumstances of the case.
Another proposed change concerns all employees, not only those whose employment relationship is protected. If an employee is dismissed with or without notice and the court of first instance reinstates the employee, the court will have to impose in its judgment an obligation on the employer to continue employing the employee until the proceedings have become final, if the employee so requests. Currently, the court’s decision on the employee’s continued employment is optional. The court considers the employee’s request based on assessing the totality of the circumstances of the case, in particular considering whether continued employment is actually possible and appropriate. After September 22, 2023, the court will have to order the continued employment of the employee until the case is finally resolved. The court will therefore serve as a mechanical enforcer of the injunctive relief application.
The new solutions may be assessed as overly burdensome for employers and protecting only the interests of employees. Practitioners point out that this is another change in the law that may induce employers to seek forms of employment other than an employment contract.
By Agnieszka Nowak-Blaszczak, Counsel and Employment Lead, Wolf Theiss
This article was originally published in Issue 10.9 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.
